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Tribal Immunity on Trial: Which Shoe Will the Supreme Court Drop?

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While we wait for the U.S. Supreme Court opinion in the case of Michigan v. Bay Mills Indian Community, it is worthwhile to review the history and context of the key issue: i.e., whether tribal sovereign immunity bars a state from suing in federal court to enjoin a tribe from violating the Indian Gaming Regulatory Act outside of Indian lands.

A good way to do that review is to read an article in the American University Law Review from August 2013: "It Wasn't An Accident: The Tribal Sovereign Immunity Story," by Professor William Wood. Prof. Wood takes his title from a phrase in a 1998 Supreme Court decision—Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., where the court said the doctrine of tribal sovereign immunity "developed almost by accident."

Though the Supreme Court upheld tribal immunity in the Kiowa case, its opinion went out of the way to explore "considerations [that] might suggest a need to abrogate tribal immunity." As Prof. Wood shows, these "considerations" prompted a number of courts—state and federal—to attack tribal immunity in a variety of subsequent cases. The current appeal by Michigan in its lawsuit against the Bay Mills Indian Community is the latest and perhaps most dangerous of the challenges to the doctrine of tribal immunity.

Before we explore why Prof. Wood says the doctrine of tribal immunity is not an "accident," we may note that the Supreme Court's critique of tribal immunity was also not "accidental."

The U.S. Supreme Court has for some time now been on a trajectory that undermines elements of federal Indian law protecting the special status of Indian nations. The court has issued rulings that eviscerate the "trust doctrine" (e.g., the Navajo coal case) and has erected barriers against Indian nations recovering their land bases (e.g., the Carcieri, Oneida, and Cayuga cases.) This trajectory suggests that Michigan v. Bay Mills is a dangerous case for Indians. It gives the court an opportunity to do yet more damage to the principles supporting Indian self-determination.

It is not surprising that Prof. Wood says the Kiowa decision "ignored some of the foundational tribal sovereign immunity cases, including cases cited in [the court's] own precedent" and "turned a blind eye to…foundational cases." We are—unfortunately—getting used to a Supreme Court bench that feels it can openly disregard any precedent it doesn't like…at the same time it pretends to be a "conservative" court that doesn't like "judicial activism."

Prof. Wood says, "Understanding the history of the doctrine [of sovereign immunity] requires putting the doctrine in its proper context, which in turn requires understanding not only the path along which tribal immunity developed but also the doctrinal context in which it arose." He adds, "By the time the United States was founded, sovereign immunity was, in the oft-quoted words of Alexander Hamilton, seen as something 'inherent in the nature of sovereignty' that was recognized by the 'general sense, and the general practice of mankind.'"

Prof. Wood shows that the United States followed the English and European policy of recognizing tribal sovereignty and associating with tribes through treaties. His study of Supreme Court opinions on sovereign immunity shows that the doctrine was based on the same concepts for tribal as for federal and state governments, even though the notion of tribal sovereignty was distorted by the doctrine of Christian Discovery. In other words, all forms of sovereign immunity were "simply taken as a given, or as a 'universally received opinion.'"

As Wood points out, Congress has recognized tribal immunity across three centuries, and this is "perhaps the only thing that has kept the [supreme court] from limiting the doctrine [and] from diminishing tribal immunity like it has other aspects of tribal sovereignty."

Prof. Wood's assessment of the reason for the supreme court's criticism of tribal immunity seems entirely accurate: "For the Supreme Court…the dislike of tribal immunity seems to come as much (if not more) from a discomfort with tribal sovereignty than from any discomfort with sovereign immunity. The Court's general unease with and negative reactions to tribal sovereignty over the past four decades…reflects…a distrust of tribal courts and institutions."

Some may see the Supreme Court's distrustful attitude toward Indian nations as a form of invidious discrimination against non-Western peoples. Others may see it as an extension of the colonial effort to dominate Indians that gave birth to the doctrine of Christian Discovery. Still others may see it as a form of jealousy that is aimed at the recent economic successes of some Indian nations. Yet others may see it as a version of forced assimilation that has animated colonial and neo-colonial policy in prior eras.

Whichever one or combination of factors might explain the Supreme Court's antagonism to tribal immunity, suffice it to say (with Prof. Wood) that the court's attitude "necessarily raises questions about the extent to which that [antagonism] reproduces that history [of colonization and occupation of Indian lands.] He concludes that, "whatever the normative aspects of the debate over tribal immunity, that debate should be based on a proper history."

Supreme Court precedents clearly state that Indian nations pre-date the formation of the United States and have a status that is independent from the U.S. Constitution. The Court has always had trouble trying to squeeze Indians into the mold that shapes the federal-state structure of American government. From the earliest cases of federal Indian law, Indians have been held to be in a special relationship to that structure. Often, Indian law cases have really been about apportioning powers between the federal and state governments, as in the 1996 case of Seminole Tribe v. Florida, where the court restricted Congress's power to abrogate state immunity.

In other words, federal Indian law has been convoluted and complicated since the beginning, being a mixture of domestic and international law. It consists of principles of indigenous nationhood and doctrines of colonial imposition, stirred together with changing social and political attitudes and economic agendas. The irony of the current Supreme Court's attitude is that it aims to undermine Indian self-determination at precisely the moment when such self-determination seems within reach. A cynic will say that is exactly the point. We will see.

Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on indigenous issues.

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